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Rev. Stat. § 43-1505
Nebraska
Revised Statutes of 1943
Chapter
43. Infants and Juveniles
Article
15. Nebraska Indian Child Welfare Act
§
43-1505. Foster care placement; termination of parental rights;
procedures; rights.
(1) In any involuntary
proceeding in a state court, when the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care placement
of, or termination of parental rights to, an Indian child shall notify
the parent or Indian custodian and the Indian child's tribe, by certified
or registered mail with return receipt requested, of the pending proceedings
and of their right of intervention. If the identity or location of the
parent or Indian custodian and the tribe cannot be determined, such notice
shall be given to the secretary in like manner, who may provide the requisite
notice to the parent or Indian custodian and the tribe. No foster care
placement or termination of parental rights proceedings shall be held
until at least ten days after receipt of notice by the parent or Indian
custodian and the tribe or the secretary. The parent or Indian custodian
or the tribe shall, upon
request, be granted up to twenty additional days to prepare for such proceeding.
(2) In any case in which
the court determines indigency, the parent or Indian custodian shall have
the right to court-appointed counsel in any removal, placement, or termination
proceeding. The court may, in its discretion, appoint counsel for the
child upon a finding that such appointment is in the best interest of
the child. When state law makes no provision for appointment of counsel
in such proceedings, the court shall promptly notify the secretary upon
appointment of counsel and request from the secretary, upon certification
of the presiding judge, payment of reasonable fees and expenses out of
funds which may be appropriated.
(3) Each party to a foster
care placement or termination of parental rights proceeding under state
law involving an Indian child shall have the right to examine all reports
or other documents filed with the court upon which any decision with respect
to such action may be based.
(4) Any party seeking
to effect a foster care placement of, or termination of parental rights
to, an Indian child under state law shall satisfy the court that
active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.
(5) No foster care placement
may be ordered in such proceeding in the absence of a determination, supported
by clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage
to the child.
(6) No termination of
parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
Source: Laws 1985, LB
255, § 5; Laws 1987, LB 93, § 11.
NOTES
OF DECISIONS
Under this section, a
determination to terminate parental rights must be supported by evidence
beyond a reasonable doubt, which is proof so convincing that one would
rely and act upon it without hesitation in the more serious and important
transactions of life. In re Interest of Phoebe S. and Rebekah S., 11 Neb.
App. 919, 664 N.W.2d 470 (2003).
Under this section, qualified
expert testimony is required in a parental rights termination case on
the issue of whether serious harm to the Indian child is likely to occur
if the child is not removed from the home. In re Interest of Phoebe S.
and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).
Under this section, the
State shall provide evidence that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved unsuccessful.
In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d
470 (2003).
This section provides
specific statutory requirements for proving a case for termination of
parental rights in a juvenile court action involving an Indian child,
and the petition for termination of parental rights must include sufficient
allegations of the requirements of section 43-292 as well as this section
to survive a demurrer. In re Interest of Sabrienia B., 9 Neb. App. 888,
621 N.W.2d 836 (2001).
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